The decision of Murray J in R (NCA) v Hao & Ors [2024] EWHC 2240 (Admin) caused sharp intakes of breath in the family offices of high-net-worth individuals a fortnight ago.

Two expatriate Chinese nationals who entered Britain on golden visas without asylum were left high and dry by a ruling on 30 August 2024, which establishes comity between the National Crime Agency (NCA) and the Chinese Public Security Bureau (PSB).

The High Court was satisfied that it was justified in acting against the couple, largely based on suspicions stemming from allegations made by the PSB to the NCA in a request for international assistance.

The ruling clears a path for significantly enhanced relations between the two national criminal agencies. An exchange of information gleaned from a criminal and financial investigation into the couple’s past dealings in China will allow the agencies, following the making of a disclosure order under the jurisdiction of the Court in England and Wales and Northern Ireland, to share information gathered from the couple under compulsion by the NCA.

This hugely consequential aspect of the order is not mentioned in the judgment and doubtless did not feature in the argument. As a result, there is no discussion of whether the disclosure order, intended as a coercive measure in the UK for the benefit of the NCA in its civil recovery investigation, could allow the PSB, in breach of the privilege against self-incrimination, to use any information, answers, or documents obtained under compulsion from the couple in the UK in criminal proceedings in China.

There was discussion of the application of the privilege under Article 6 in relation to foreign proceedings, where compulsion was used in a national setting to secure the production of documents involving respectively Norway and Jersey, in Volaw Trust and Corporate Services Ltd v The Office of the Comptroller of Taxes (Jersey) [2019] UKPC 29, [2020] 1 All ER 941 at [68].

Both of those jurisdictions adhere to the Convention, while China, of course, does not. Even though China has signed the International Covenant on Civil and Political Rights (ICCPR), as the European Court observed in its ruling on Article 3 regarding criminal detention and torture in China, there is no international legal mechanism to test China’s adherence to the privilege against self-incrimination under Article 14 of the ICCPR: see, mutatis mutandis, Liu v Poland, no. 37610/18, 6 October 2022, at [75] and [77].

In Hao, the court stated that there were no exceptional concerns regarding the truth of the allegations against the couple, merely because the allegations had been brought to the attention of the authorities in this jurisdiction by the criminal authorities of China. This would be the case unless there was evidence of a significant political profile, which the couple did not claim. However, the judgment of the European Court in Liu v Poland suggests that the couple may qualify for protection in principle, precisely because they are suspects in a criminal investigation being conducted by the PSB.

All of which brings me to the key case[1] of De Legé v the Netherlands, no. 58342/15, 4 October 2022, which is important to the discussion of the application of the privilege against self-incrimination because it extends the protection of Article 6, firmly embedded in the case of pending criminal proceedings, to the situation also where criminal proceedings may be anticipated or, at least, cannot be excluded.

Furthermore, it is confirmed in De Legé that in those same situations, the privilege under Article 6 may also prevent the state from “fishing” for documents, namely “the attempt to compel an individual to provide the evidence of offences he or she has allegedly committed by forcing him or her to supply documents which the authorities believe must exist, although they are not certain of it”.

By contrast, under our domestic scheme, if, by reason of a disclosure order, a person is forced against his or her will to make a statement to the NCA, in many instances, the legislation will prohibit its use against them in criminal proceedings, however, the statute does not prohibit its use in any criminal investigation.  Moreover, there is no protection of any kind for documents.

Thus, it may be argued that the saving under the statutory scheme in respect of the privilege against self-incrimination, as set out in section 360 of the Proceeds of Crime Act 2002, is deficient in view of more recent developments in the case law of the European Court.

Practitioners are urged to become familiar with how Article 6 of the Convention, not forgetting Article 8 (not dealt with here), substantially impacts the making of a disclosure order under POCA.

BECKET BEDFORD

No5 Chambers